Suing the pinateros

The LA Times has a very interesting story
on the law suits by big entertainment companies against one of the
dirt-floored businesses in central Los Angeles that sells pinatas in
the image of characters subject to copyright and trademark
protections.  I am quoted in that story as saying that a
group of large entertainment companies have to sue these tiny
businesses, which apparently have revenues often less than $50,000 per
year.  This is not my view.  (And which is why I am glad to
have a weblog to be able to characterize more fully my thoughts; not
that anyone will necessarily come zooming over here to read more, but

As with most interesting legal questions, there are two or
more sides to any set of facts.  In this case, Viacom,
Warner Bros., Disney et al. plainly have a set of
intellectual property rights in the characters and stories that
are rendered into pinata form by the pinateros.  On the
face of it, under U.S. law, some of the pinateros are almost
certainly violating those rights by making and selling these
pinatas.  It may be the case that there are mitigating
circumstances here, or perhaps effective defenses, that a judge or a
jury would recognize.  But these are probably not very hard cases
for the entertainment companies to win, under current
U.S. law, like it or not.  It is almost
certainly the case that executives of these companies felt
compelled to enforce these rights by issuing cease and desist letters,
seeking to get the infringement to stop without going to court, and
then to file suit against a handful of
the pinateros.  

But far from thinking that these executives are compelled to make
such a decision, I think it’s absurd to have filed them.  See for
yourself: two examples of these complaints are here (Viacom v. El Cora Produce) and here
(Viacom v. Saavedra’s Produce). These huge entertainment companies
using their muscle to stop people from making pinatas of their
characters that are the star of the show at a five year old’s
birthday?  One of the claims is “unfair competition.” 
There’s obviously a legal meaning of that term.  It’s certainly an
unfair fight between a storefront business with margins at or near zero
v. the likes of Viacom — but not in the direction that the complaints
allege.  There has got to be a better way to handle
these disputes than these lawsuits.

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